Herrera-Welker v. State of Oregon Department of Corrections ( 2024 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RAFAEL HERRERA-WELKER, Plaintiff, Case No. 1:22-cv-00401-CL V. ORDER STATE OF OREGON; OREGON DEPARTMENT OF CORRECTIONS; K. WHITE; CYNTHIA DIETER; GARTH GULICK; PATRICK MANEY; L. GRUENWALD; DAVID GORDANIER; C. CAMPOS; HAILEY COLEMAN; JAMES KEMPAS; TINA HAZEN; ROBERT HOLDEN; ANTONIO FERNANDEZ; CANDA ZIMMERLY; WARREN ROBERTS and JOHN AND JANE DOES, Defendant. MCSHANE, Judge: Magistrate Judge Mark D. Clarke filed a Findings and Recommendation (ECF No. 25), and the matter is now before this Court.s See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b). I review de novo. United States v. Bernhardt, 840 F.2d 1441, 1445 (9th Cir. 1998). I find no error and conclude the report is correct. 1 -ORDER Magistrate Judge Clarke’s Findings and Recommendation (ECF No. 24) is adopted in full. The Motion to Dismiss for Failure to State a Claim is granted. Plaintiff’s first, second, and third claims for relief are dismissed. Plaintiff’s claims against the State of Oregon, ODOC, and all individual Defendants in their official capacity are dismissed with prejudice. Plaintiff’s claims against Defendants Campos-Hernandez, Coleman, and Gordanier are dismissed with prejudice. Claims against Defendant Gulick in his individual capacity are dismissed without prejudice and with leave to amend. Plaintiff has thirty (30) days to file a Second Amended Complaint. IT IS SO ORDERED. DATED this 28th day of February, 2024. ____s/Michael J. McShane___________ Michael McShane United States District Judge 2 –ORDER